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Madhya Pradesh High Court · body

2002 DIGILAW 1053 (MP)

Preeti Wilson v. Cantonment Board, Jabalpur

2002-11-27

S.K.KULSHRESTHA

body2002
JUDGMENT By this petition, the petitioner has challenged the order Annexure P-7 dated 17.7.2002, by which the offer of appointment to the post of Nurse in M.N. Hospital, Cantonment, Jabalpur, has been withdrawn and cancelled by the Cantonment Executive Officer, Jabalpur. The petitioner holds a Diploma in General Nursing and Midwifery from the Mahakeshal Nurses Registration, Bhopal. She has also undergone training in General Nursing and Midwifery at Medical College, Jabalpur. The respondents issued an advertisement (Annexure P-4) on 24.5.2002 inviting applications from trained Nurses between the age limit of 18 to 25 years for Motilal Nehru Hospital, Jabalpur Cantonment, to be submitted on or before 1600 Hours on 7th June, 2002. It is not disputed that the name of the petitioner was also forwarded by the Employment Exchange. It is also not disputed that the date of birth of the petitioner is 31.5.1977 as evidenced by her Mark-sheet (Annexure P-3), with the result the petitioner completed the age of 25 years on 31.5.2002. The petitioner was sent offer of appointment vide Annexure P-6 dated 2.7.2002 on the condition that the appointment was subject to her age being below 25 years on the date of her joining the service. However, on realising that she was overage, the offer was withdrawn and cancelled by the impugned order and, therefore, the petitioner has filed the present petition. Learned counsel for the petitioner has submitted that the advertisement Annexure P-4 was issued on 24.5.2002 and the applications were invited till 7.6.2002 and, therefore, the respondents could nor have fixed the date of appointment as the reference date for assessing eligibility of the candidates. She has further contended that the petitioner had truly disclosed her date of birth and with full knowledge -- about the date of birth of the pet1tioner -- the order of appointment had been issued to her and the same could, therefore, not have been withdrawn or cancelled on the ground that as on the date of appointment the petitioner had crossed the age of 25 years. Her further contention is that in any case, under the proviso to rule 5-B(2) of the Cantonment Fund Servant Rules, 1937, power was available to the Officer -- Commanding-in-Chief -- to relax the age limit and it was a fit case for the exercise of the said power by the said authority. The respondents have filed a return. Her further contention is that in any case, under the proviso to rule 5-B(2) of the Cantonment Fund Servant Rules, 1937, power was available to the Officer -- Commanding-in-Chief -- to relax the age limit and it was a fit case for the exercise of the said power by the said authority. The respondents have filed a return. The respondents have submitted that in the names forwarded by the Employment Exchange there was over writing in the date of birth of the petitioner which misled the respondents into a belief that her date of birth was 31.8.1977. A copy of the list of candidates forwarded by the Employment Exchange has also been filed as Annexure R-2. The respondents have also referred to rule 5(B)(2) of the Cantonment fund Servant Rules, 1937, in support of the contention that age is to be seen at the time of appointment and not any time prior thereto and since admittedly the petitioner had crossed the age of 25 years on the date of appointment the respondents had not committed any error in canceling the appointment of the petitioner. Learned counsel for the petitioner has invited attention to the decision of the Supreme Court in Bhupinderpal Singh v. State or Punjab [ (2000) 5 SCC 262 ] in support of her contention that where the rules do not prescribe any reference date for ascertaining the eligibility of the candidates, the eligibility is to be seen with reference to the date specified in this behalf in the advertisement inviting applications and in the absence of the dale specified in the notice inviting applications, the eligibility is to be seen with reference to the last date for submission of the application forms. Learned counsel submits that on 24.5.2002 when the advertisement was published, the petitioner was below 25 years of age and was, therefore, eligible. Learned counsel submits that on 24.5.2002 when the advertisement was published, the petitioner was below 25 years of age and was, therefore, eligible. In the present case, provision with regard to the age has been made by Rule 5 of the Cantonment Fund Servant Rules, 1937, which reads as follows: "No person aged below eighteen years and more than twenty-five years shall he appointed to any post under a Board: Provided that the Officer Commanding-in-Chief the Command, may, if he consider it necessary so to do and subject to any directions issued by the Central Government in this behalf, relax the aforesaid age limits generally or specifically, with reference to specified categories or specific cantonments or with reference to individual cases to such extent as he considers appropriate." From a bare perusal of the rules, it is manifest that, it in no uncertain terms, provides for determination of age with reference to the date of appointment. It is not disputed that the petitioner had crossed the age of 25 years on the date she was appointed and had thus become overage for the appointment. Since the petitioner was overage, the respondents did not in any way err in cancelling the appointment. Learned counsel for the petitioner has next contended that since the petitioner was over age only by margine of few days, the Officer Commanding in Chief should have considered her case for the relaxation of the age limit under the proviso to rule 5-8(2). Reference has also been made by the learned counsel to the decision of the Supreme Court in Prabhu Dayal v. State of Rajasthan ( AIR 1986 SC 1 (48). In the case of Prabhu Dayal, Their Lordships expressed the wish that the Government would consider the question of relaxation in the upper age limit in order to mitigate the hardship if otherwise permissible. In the present case, there is specific provision empowering the Officer Commanding in Chief to relax the age limit even with reference to individual cases. The petitioners free to make an appropriate application to the Officer Commanding in Chief in this behalf. With this liberty to the petitioner to make an application to the Officer Commanding in Chief this petition dismissed.